I. II. CHAPTER XXII. SHIPS' PAPERS AND SEA-LETTERS. VESSELS CARRYING THE FLAG OF THE UNITED STATES CANNOT, IN TIME OF PEACE, BE ARRESTED ON THE HIGH SEAS, EXCEPT AT THE RISK OF THE PARTY MAKING THE ARREST, § 408. SHIPS' PAPERS CERTIFYING, UNDER THE AUTHORITY OF THE UNITED STATES, THAT THE VESSEL HOLDING THEM IS A VESSEL OF THE UNITED STATES, CANNOT BE TESTED AS TO ALLEGED FRAUDULENCY BY FOREIGN POWERS. THE QUESTION OF THEIR VALIDITY IS EXCLUSIVELY FOR THE UNITED STATES, § 409. III. VESSELS OWNED BY CITIZENS OF THE UNITED STATES MAY CARRY THE FLAG OF THE UNITED STATES ON THE HIGH SEAS, AND ARE ENTITLED TO THE PROTECTION OF THE UNITED STATES GOVERNMENT, THOUGH FROM BEING FOREIGN BUILT, OR FROM OTHER CAUSES, THEY ARE NOT AND CANNOT BE REGISTERED AS VESSELS OF THE UNITED STATES, § 410. CHAPTER XXIII. LETTERS ROGATORY. PRACTICE AS TO SUCH LETTERS, § 413. XXXIII CHAPTER I. SOVEREIGNTY OVER LAND. I. TERRITORIAL SOVEREIGN SUPREME, § 1. II. DISCOVERY THE BASIS OF TITLE, §2. III. CONQUERED TERRITORY SUBJECT TO TEMPORARY MILITARY CONTROL, § 3. V. BENEFITS AND BURDENS PASS TO CONQUERING OR ANNEXING SOVEREIGN, § 5. VII. COLONIES BECOMING INDEPENDENT RETAIN THEIR BOUNDARIES AND OTHER RIGHTS, § 6. VIII. TITLE OF DE FACTO GOVERNMENT TO OBEDIENCE, § 7. IX. LAW OF NATIONS PART OF LAW OF LAND, § 8. X. MUNICIPAL LAWS NOT EXTRA-TERRITORIAL, § 9. XI. DISTINCTIVE RULE AS TO TAXES, § 10. XII. DISTINCTIONS AS TO FEDERAL CONSTITUTION, § 11. (1) General principles, § 11a. (2) Recruiting in foreign State forbidden, § 12. (3) Permission requisite for passage of foreign troops, § 13. (5) And so of foreign jurisdiction of crime, § 15. (6) And so of foreign sending of paupers and criminals, § 16. XIV. EXCEPTION AS TO NECESSITY, § 17. XV. EXCEPTION AS TO FOREIGN SOVEREIGNS, FOREIGN MINISTERS, AND FOREIGN TROOPS, 17a. XVI. EXCEPTION AS TO UNCIVILIZED LANDS, § 176. XVII. DUTY OF SOVEREIGN TO RESTRAIN AGENCIES LIKELY TO INJURE ANOTHER COUNTRY. (1) Predatory Indians, § 18. (2) Other marauders, § 19. (3) Diversion or obstruction of water, § 20. XVIII. WHEN HARM IS DONE BY ORder of forEIGN SOVEREIGN SUCH SOVEREIGN IS THE ACCOUNTABLE PARTY, § 21. XIX. TERRITORIAL BOUNDARIES DETERMINED BY POLITICAL, NOT JUDICIAL, ACTION, ◊ 22. I. TERRITORIAL SOVEREIGN SUPREME. § 1. The authority of a nation within its own territory is absolute and exclusive. Church v. Hubbart, 2 Cranch, 187, 234. (See more fully infra, § 9.) Any restriction upon this sovereignty, when such restriction comes from a foreign power, implies a transfer pro tanto of such sovereignty to such power. "This full and absolute territorial jurisdiction being alike the attribute of every sovereign, and being incapable of conferring extraterritorial power, would not seem to contemplate foreign sovereigns nor their sovereign rights as its objects. One sovereign being in no respect amenable to another, and being bound by obligations of the highest character not to degrade the dignity of his nation by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him." Marshall, C. J. Schooner Exchange v. McFaddon, 7 Cranch, 137. (See infra, § 17a.) A foreign power cannot of right institute or erect any court of judicature of any kind, within the jurisdiction of the United States, but such only as may be warranted by and be in pursuance of treaties. Hence the admiralty jurisdiction, which has been exercised in the United States by consuls of France, not being so warranted, is not of right. Glass r. Sloop Betsey, 3 Dallas, 6. A seizure for the breach of the municipal laws of one nation cannot be made within the territory of another. The Apollon, 9 Wheaton, 362. It belongs to sovereignties to fix boundaries between their respective jurisdictions; and when fixed by compact, they become conclusive upon their citizens and bind their rights. Poole r. Fleeger, 11 Peters, 185. (See infra, §§ 9, 11a.) The doctrine of the unity of sovereignty within specific territorial bounds, and of homogeneousness of institutions and laws within those bounds, is of comparatively recent origin. At the breaking up of the Roman Empire, when, within the territory formerly dominated by Rome, distinct nationalities, with distinct usages and laws, were introduced, it was not attempted to extend over races so diverse, and with such strongly variant traditions, a jurisprudence which would apply equally to all dwelling within the same territorial limits. Hence, while the invading nations who settled within the old Roman boundaries retained each their own usages and laws, there was no attempt to break down the usages and laws by which the Romans were personally governed. From this sprang up the system of what is called "personal" law; i. e., law which derives its character not from locality, but from race. In modern Europe "personal" law has been almost entirely superseded by "territorial" law; 4. e., law imposed by the sovereign of the territory upon all who occupy it. Few exceptions are now recognized in Europe. The chief of these are those which in certain countries impose disabilities on Jews. (Infra, § 55.) In the United States we have a remarkable exeeption, as will hereafter be more fully seen, in the Indian race (see înfra, $208). The members of that race, when dispersed in the general population, are governed, as are the persons about them, by territorial' law; . ., the law of the land which they occupy. When, however, they are collected in tribal reservations, they are governed, at least in part, by the law of their tribe. With this exception, all persons resident in the United States are equally subject to the law of the particular part of the country in which they reside. But this "territorial" law is itself modified by the following conditions: (1) Persons who, though residing on our soil, are domiciled in another country, are subject, so far as concerns personal taxation, legitimacy, and the distribution of their personal property after death, to the law of their domicile, and not to the law of their temporary residence. Domicile, not temporary residence, also determines the jurisdiction of divorce proceedings. (Inf., § 260 ff.)' (2) The law that determines the mode of solemnizing marriage is that of the place of solemnization. (Inf., § 260 ff.) (3) "Territorial" sovereignty, while absolute, so as to exclude, except by its own permission, foreign jurisprudences, so far from excluding a distribution of power, primarily in the people, and secondarily in sev eral gradually ascending or co-ordinate departments of government, is in all modern civilized countries so distributed. This is eminently so in the United States. (Infra, § 11.) On the general question of "territorial" as distinguished from "personal" law may be consulted Maine's Ancient Law, Whart. Conf. of Laws, §§ 7, 8, 9, 84 ff. That all sovereigns are to be treated as equals, see Mr. Bayard, Sec. of State, report, etc., quoted App., Vol. III, § 61. II. DISCOVERY THE BASIS OF TITLE. $2. [This topic in reference to transmission of Indian titles, is discussed infra § 209; as to guano islands, infra § 310.] "On the discovery of this immense continent the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. * But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the Government by whose subjects or by whose authority it was made against all other European Governments, which title might be consummated by possession. The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no European could interfere. It was a right which all asserted for themselves, and to the assertion of which by others all assented. * ** While the dif ferent nations of Europe respected the right of the natives as occupants, they asserted the ultimate dominion to be in themselves, and claimed and exercised as a consequence of this ultimate dominion a power to grant the soil while yet in possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy." Marshall, C. J., Johnson v. McIntosh, 8 Wheat., 572 ff. |